There is a tariff. There has always been a tariff. The legal authority beneath it is the part that keeps changing.
The Bureau of Statutory Substitution, Tariff Continuation Division, has assembled the following case file for institutional reference. Events are presented in sequence. The sequence is the finding.
February 20, 2026 — morning
The Supreme Court of the United States issued its decision in Learning Resources, Inc. v. Trump. Chief Justice Roberts, writing for a 6-3 majority, held that the International Emergency Economic Powers Act does not authorise the imposition of tariffs. The reasoning was narrow and textual: when Congress delegates tariff authority, it uses explicit language — the word "tariff," defined rates, temporal limits, procedural prerequisites. IEEPA contains none of these features. The statute authorises the president to "regulate importation." It does not contain the word "tariff." It does not contain the word "duty."
The government had been collecting a global 10% tariff under this authority since April 2025.
February 20, 2026 — same day, later
The president issued a proclamation imposing a 10% global import surcharge under Section 122 of the Trade Act of 1974.
Section 122 is a different statute. The surcharge it authorised was 10%.
BUREAU NOTE: The reader may wish to note that the rate did not change. The legal authority that collected it changed. From the perspective of an importer's customs invoice, the morning and the afternoon of February 20, 2026 are indistinguishable. The Bureau regards this as a logistical success.
February 22, 2026
The administration announced that the Section 122 surcharge would be raised to 15 percent — the maximum rate the statute permits. Section 122 caps the authority at 15% and at 150 days. Both ceilings were being approached simultaneously.
February 24, 2026
The Section 122 surcharge took effect.
For readers unfamiliar with Section 122: it is a provision of the Trade Act of 1974. It authorises the president to impose a temporary surcharge — up to 15%, for up to 150 days — in response to "fundamental international payments problems," including "large and serious" balance-of-payments deficits. Congress must vote to extend any surcharge beyond 150 days. The statute was enacted on January 3, 1975.
It had not been used before February 20, 2026. No administration in the intervening fifty-one years had identified qualifying conditions.
Legal scholars note an additional feature of the statute's history. Section 122 was written in response to President Nixon's 1971 use of the Trading with the Enemy Act — a different statute — to address a balance-of-payments problem that existed under the fixed exchange-rate architecture of the Bretton Woods system. The United States abandoned the gold standard and the fixed exchange-rate system in 1971. The Trade Act of 1974 was enacted three years later. Section 122, designed to address balance-of-payments crises of the Bretton Woods variety, took effect in a world where the monetary architecture it was written for no longer existed.
The statute waited fifty-one years. The emergency arrived anyway.
March 5, 2026
Twenty-four state attorneys general filed suit at the U.S. Court of International Trade, challenging the Section 122 surcharge. Their argument: the conditions Section 122 requires — "fundamental international payments problems" — are not present. A trade deficit, they argued, is not a balance-of-payments crisis in the sense the statute was written to address.
March 9, 2026
The Liberty Justice Center filed a second suit on behalf of Burlap and Barrel, Inc., a spice importer, and Basic Fun, Inc., a toy company. A spice company and a toy company are the named challengers to executive tariff authority. The Bureau notes the casting. The legal theory was similar: the statutory predicate does not exist, and even if it did, the delegation of authority raises constitutional concerns under the nondelegation and major questions doctrines.
April 10, 2026
The U.S. Court of International Trade convened oral arguments in both cases before a three-judge panel. The hearing lasted more than three hours.
This was the first time any court had interpreted Section 122's "balance of payments" language. The statute had no judicial history because it had never been invoked.
The government's position, presented by Assistant Attorney General Brett Shumate, rested on two arguments. First: the trade deficit qualifies as a "fundamental international payments problem" because the current account — which consists mainly of the trade deficit — is part of the official balance-of-payments calculation. Second: the president's determination that such a problem exists is an unreviewable exercise of presidential judgment. Courts cannot assess whether the predicate condition is present.
Judge Timothy Stanceu pressed the government on its first argument. He noted that Shumate had "repeatedly admitted he cannot say what the balance of payment deficit is right now." Under the government's theory, the condition justifying the emergency measure was one the government could not quantify.
Multiple judges suggested the government's interpretation "proves too much." If a trade deficit alone constitutes a qualifying condition, every administration since 1975 has been in a permanent balance-of-payments emergency, and Section 122 can be invoked at any time without meaningful limit. The panel appeared unpersuaded that this was the outcome Congress intended.
The government also misstated the historical record. Shumate argued that Nixon's 1971 tariffs were a response to trade deficits. In 1971, the United States had a trade surplus.
BUREAU NOTE: The Bureau notes that invoking a fifty-one-year-old statute for the first time, before a court that has no prior interpretation to work from, while being unable to quantify the condition the statute requires, and while misstating the historical precedent the statute was enacted to codify — all of this occurred in a single three-hour hearing. The Bureau regards this as a busy morning for a provision that had previously spent half a century doing nothing.
July 24, 2026 — approaching
The Section 122 surcharge expires. This is not a judicial outcome. It is a calendar event. The statute built in its own expiration.
Congress can vote to extend the surcharge. Trade policy analysts consider an extension unlikely. The administration has launched Section 301 investigations on an accelerated timeline — covering industrial overcapacity, pharmaceutical pricing, and technology discrimination — which would provide a third statutory vehicle for tariffs if Section 122 is also struck down or expires without renewal.
The Section 122 tariff may end in one of three ways: invalidated by the Court of International Trade, expired by statute, or absorbed into a different statutory authority before either of those events occurs.
The Bureau observes that the tariff has now been held under two legal authorities, challenged under both, and is being prepared for a third. The authorities differ in their scope, their history, and their constitutional grounding. The tariff has remained 10 to 15 percent throughout.
In trade law, the authority beneath a measure is the measure. The same rate, collected under different statutes at different times, is legally three different tariffs. Administratively, it is one continuous policy with a filing problem.
BUREAU NOTE: Section 122 requires the president to "proclaim" the measures upon finding that qualifying conditions exist, or to notify Congress immediately if declining to do so. Since 1975, no president formally proclaimed or formally declined. The Bureau interprets this as fifty-one years of institutional silence on whether the conditions were present. The administration found the conditions in February 2026 — the same afternoon the previous authority was invalidated. The Bureau notes the timing and records it without comment.
The Bureau of Statutory Substitution, Tariff Continuation Division, is a sub-department of the Bureau of Public Agreement™. It has now documented three statutory vehicles for the same tariff. The Bureau notes that this filing is also in its third draft. Some things persist regardless of the authority beneath them.